SPECIAL REPORT: TSA delays fingerprinting for some hazmat drivers - again

| 11/24/2004

The Transportation Security Administration is taking action to once again delay the deadline for fingerprinting hazmat drivers.

In a notice on the Federal Register, the agency said it would move the start date for some of the fingerprint-based checks - which will be required for CDL holders with hazardous materials endorsements - to May 31, 2005.

According to Deirdre O'Sullivan, a TSA spokesperson, new hazmat applicants will still be subject to fingerprint-based background checks as of Jan. 31, 2005; the delay to May 31, 2005, applies only to renewal applicants and to drivers transferring their hazmat endorsements from one state to another.

The delay was contained in an interim final rule posted Nov. 24. The interim rule also contained a number of other changes.

For example, under the new rule, each state would be required to declare whether it wants to gather and submit the fingerprints, applicant information and fees, or whether it wants the TSA to do that work.

States would no longer have to forward all driver applications to the TSA; however, they would have to keep the applications for one year. And those states that chose to do the work themselves would be required to submit the information and fingerprints electronically to the agency.

The changes were prompted in part by a number of state governments that were concerned about their ability to carry out the program by the previous deadline.

"The overwhelming majority of the comments are from the states and concern the need for additional time and resources," TSA officials wrote in the interim final rule. "The states notified TSA that state funding, human resources and technology are in short supply. Many of the states needed additional state legislative authority to conduct the program and to collect fees to pay for the states' costs in implementing the program."

Rick Craig, OOIDA's director of regulatory affairs, said one of the biggest problems as this and previous deadlines approached has been "the delay on TSA's part to publish the details so that states can proceed" with the fingerprinting process.

"Some states have been ready to jump; they just didn't have all the details they needed to implement it," he said. "TSA has been too slow in getting out that information that they need."

Craig said the delay may help alleviate some of that uncertainty that states and truck drivers have faced as the deadline for fingerprinting neared - and should give the states and TSA the time they need to better set up the process.

"When they implement this thing, they better implement it right," he said. "I'd rather see them delay it than haphazardly shove something through that would result in a serious negative impact on hazmat endorsement holders."

Privacy worries
TSA officials acknowledged that a number of drivers had voiced concerns about the agency's ability to keep their information private once it is gathered.

"Some drivers are skeptical that TSA can protect this personal information from use by other government agencies, commercial organizations or employers," the agency said in the interim final rule. "TSA employees and contractors are bound by law and contract to abide by federal privacy laws to protect personal information from unauthorized disclosure. There are criminal sanctions for individuals who violate these laws."

The agency also noted that the FBI places restrictions on who can have access to data from fingerprint-based background checks.

However, the TSA also said that some employers who commented on fingerprinting rules indicated they would like to have access to some of the information, and that TSA's System of Records permits the agency to share some information with employers.

Private contractors
Part of the privacy concerns were spurred by talk in the industry that the TSA might set up a third-party contractor to perform the fingerprinting if states could not meet the deadline. O'Sullivan said the agency expects to make an announcement on that issue this coming week.

O'Sullivan declined to name any possible contractors that could be used, saying she preferred to wait for the announcement next week.

TSA spokesman Darrin Kayser told Land Line earlier this year that a contract that has yet to be awarded will be made available to those states that have difficulty meeting the Jan. 31 deadline.

"The goal is to provide states with that avenue (the contract) to have a company help them meet the deadline," he said.

He would not say whether either one or two companies would be stipulated in the contract, nor would he characterize the "companies" or company as private.

In addition, drivers would be expected to pay for the fingerprinting, he said.

All this, especially the notion that personal data should be "outsourced" to private companies, is of great concern to OOIDA. The association believes the third-party private company must be one with no stake or interest in the trucking industry.

"That means ATA, DAC and Natso need to stay out of it," said Craig.

OOIDA President Jim Johnston said, "We're extremely concerned about the security of the information drivers would have to provide to these private companies. When you give a fingerprint, you've also got to provide a lot of other information."

Meanwhile, an informal online discussion among several OOIDA members suggests that most would prefer to be fingerprinted in their own community, which would benefit from related fees. Most want to go to either the local sheriff's office or the department of motor vehicles.

State-to-state moves
Another area of concern that the TSA tried to address in the new rule involves drivers who move from one state to another.

Drivers commenting to TSA cited "the difficulty a driver faces if he undergoes security threat assessments for example, in February 2005 in Virginia, and must complete a second security threat assessment if he moves to another state in the following year."

The interim final rule attempts to make that process easier for CDL holders with hazardous materials endorsements.

Under the rule, if a driver completes a background check and then moves, he or she will not have to complete another security check until the check from the first state normally would expire.

- By Mark H. Reddig, associate editor